Pleading | The Better Chancery Practice Blog

ANATOMY OF A WILL CONTEST II: PROVING UNDUE INFLUENCE

September 21, 2010 § 5 Comments

We already took a look at testamentary capacity here. This post deals with the other pole of the will contest: undue influence.

A presumption of undue influence arises where a confidential relationship is proven to exist. Estate of Holmes, 961 So.2d 674, 680 (Miss. 2007). A confidential relationship does not have to be a legal one, and the relationship may be moral, domestic, or personal, and ” … the confidential relationship arises when a dominant over-mastering influence controls over a dependent person or trust, justifiably reposed.” Murray v. Laird, 446 So.2d 575 (Miss. 1984).

A confidential relationship exists where one person is in a position to exercise dominant influence over the other because of the latter’s dependency on the former due to weakness of mind or body, or due to trust; the law considers such a relationship to be fiduciary in character. Madden v. Rhodes, 626 So.2d 608, 617 (Miss. 1993). The party seeking to prove existence of a confidential relationship must do so by clear and convincing evidence. Whitworth v. Kines, Id. at 230.

In making its determination whether a confidential relationship exists, the trial court must consider the seven factors set out by the Mississippi Supreme Court in Dabney v. Hataway, 740 So.2d 915, 919 (Miss. 1999). Those factors are:

Whether one person has to be taken care of by others.
Whether one person maintains a close relationship with another.
Whether one person is provided transportation and medical care by another.
Whether one person maintains joint accounts with another.
Whether one is physically or mentally weak.
Whether one is of advanced age or poor health.
Whether there exists a power of attorney between the one and the other.

After considering the seven factors, the court returns to the core question, which is whether the proof establishes that the dominant person in the relationship was in a position to exercise undue influence due to the other’s weakness of mind or body, or due to trust, and whether such has been proven by clear and convincing evidence. The question at this point is not necessarily whether the dominant person did or did not exercise dominant influence; rather, the issue is whether he was in a position to do so. If the answer to the inquiry is that there is clear and convincing evidence that the dominant person was indeed in a position to exercise undue influence, the presumption arises, and the burden shifts.

Once the presumption arises, it must be rebutted by clear and convincing evidence. Estate of Pigg v. McClendon, 877 So.2d 406, 411 (Miss. App. 2003).

The proponent then has the burden of going forward with clear and convincing evidence in a three-prong test set out in Mullins v. Ratcliff, 515 So.2d 1183, 1193 (Miss. 1987). The three-prong Mullins test requires the proponent to prove:

good faith on his part;
the grantor’s full knowledge and deliberation of his actions and their consequences; and
that the grantor or testator exhibited independent consent and action.

A will or conveyance is said to be the product of undue influence when an adviser has been so persistent and pressing that the testator’s free will and agency is suppressed. See, Longtin v. Wilcher, 352 So.2d 808, 811 (Miss. 1977).

In order to determine whether the proponent acted in good faith as provided in the first prong of the Mullins test, the trial court must consider the five factors listed in Estate of Holmes, 961 So.2d 674, 680 (Miss. 2007). Those factors are:

The identity of the person seeking preparation of the instrument.
The place of execution of the instrument and in whose presence.
What consideration and fee were paid, if any.
By whom paid.
The secrecy or openness given the execution of the instrument.

The second prong of the Mullins test is the grantor’s full knowledge and deliberation of his actions and their consequences. In order to adjudicate this prong, the court must take into consideration the factors set out in Estate of Holmes, supra at 685-686. Those factors and the court’s findings are as follows:

His awareness of his total assets and their general value.
An understanding by him of those persons who would be the natural inheritors of his bounty under the laws of descent and distribution or under a prior will and how the proposed change would affect that prior will or natural distribution.
Whether non-relative beneficiaries would be excluded or included.
Knowledge of who controls his finances and business, and by what method, and if controlled by the other, how dependent is the grantor/testator on him and how susceptible to his influence.

The third and last prong of the Mullins test is whether the decedent exhibited independent consent and action. In Dean v. Kavanaugh, 920 So.2d 608, 622 (Miss. App. 1993), the Mississippi Court of Appeals stated that the best way to show independent consent and action is to establish that the testator/grantor had the benefit of advice of a competent person disconnected from the grantee and devoted solely to the testator/grantor’s interests.

WHEN RULE 41(D) COMES KNOCKING AT YOUR DOOR

September 8, 2010 § 11 Comments

Rule 41(d), MRCP, is the familiar rule by which the Chancery Clerk is authorized to send out a notice to all counsel and self-represented parties in cases ” … wherein there has been no action of record during the preceding twelve months …” that the case will be dismissed for want of prosecution. The rule requires the clerk to dismiss the action unless within thirty days of the notice, ” … action of record is taken or an application in writing is made to the court and good cause is shown why it should be continued as a pending case.”

You have received such a notice, and, galvanized into action, you toss it on your paralegal’s desk and say, “Here, take care of this,” as you saunter out the door trying not to be late for your tee time. The paralegal scours the files and finds that your usual response is to file something called “Notice to Keep Case on the Active Docket,” and she tosses a copy of it on the secretary’s desk and says, “Here, do me one of these,” and returns to her office to continue whittling away at a four-foot-tall mound of discovery. In due course, the secretary produces said pleading, you sign it, the paralegal files it, and everything is fine. Until the next week, when you find your case was dismissed despite your efforts. What went wrong?

In the case of Illinois Central Railroad Co. v. Moore, 994 So.2d 723, 728 (Miss. 2008), the Mississippi Supreme Court held that a Circuit Judge should have dismissed the plaintiff’s suit after he had received Rule 41(d) notice, and his attorney filed nothing more than letters with the court requesting that it not be dismissed. The court reasoned that Rule 41(d) requires that some procedural action that would have the effect of moving the case forward be filed, or that a proper motion under the rules be filed and noticed, the motion showing good cause why the action should not be dismiised and asking the court to rule affirmatively that it should not be dismissed.

There was evidence of severe dilatoriness on the part of plaintiff’s counsel in the ICC case. The appellate decision, however, did not turn on his want of action, but only found it to be an aggravating factor. The court’s holding turned on counsel’s non-compliance with the rules, and the result was dismissal of the lawsuit. Although dismissal under 41(d) is without prejudice, the dismissal in ICC was fatal due to the statute of limitations.

The Supreme Court decision noted that there has been a relaxed attitude about responses to 41(d) notices, but stated that it would not follow the same path. ICC now stands for the proposition that if you skirt by the rule and succeed in having your action kept on the active docket, you will likely fail if the other side appeals.

If you want to keep an action from being dismissed under Rule 41(d), simply follow the rule and either: (1) Take some action of record, such as serving discovery, or filing a legitimate motion to advance the case; or (2) File a motion with the court asking that it not be dismissed, stating good cause to support your position, and notice the motion for hearing before the thirty days expires. Anything short of either action could result in a favorable ruling by a more relaxed trial judge, but will leave you vulnerable on appeal.

Caveat: Remember that Uniform Chancery Court Rule 1.10 requires that discovery must be completed within 90 days of service of an answer, unless extended by the court. It is unlikely that this judge would have allowed either party an extension that would cause a case to be pending as long as a year. It would be difficult to convince a judge that propounding discovery after the discovery deadline has expired would be an action of record that would have the effect of moving the case forward.

Comment: The consequences of Rule 41(d) to a cause of action are usually not as dire in Chancery Court as they are in Circuit. Statutes of limitation are not as often a concern in Chancery. For clients on an unequal financial footing, however, a 41(d) dismissal can cause expenses and fees to increase dramatically, and may spell the end of meritorious litigation. It may also require you to represent a client through an appeal that you were not paid to handle, just to avoid some other action by your client.

PROBATE IN SOLEMN FORM

August 30, 2010 § Leave a comment

[This outline is based on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]

Petition filed to probate will in solemn form.

Notice to all interested persons. § 91-7-19, MCA.
Process is issued under Rule 81, MRCP.
At the petition of either party, the issue of devisavit vel non — whether the will is the valid last will and testament of the decedent — may be tried.

Hearing.

Either party may request a jury trial. § 91-7-19, MCA.
Burden of proof is by a preponderance of the evidence.
If the will has already been admitted to probate in common form, the prima facie burden of proof has been met, and the burden of proof shifts to the contestants to overcome thr proponent’s prima facie proof as to the will’s validity. § 91-7-27, MCA.
Tactical advantage if the will has already been admitted to probate in common form. § 91-7-29, MCA.

Adjudication.

Binding on those made parties to the proceeding.

WHEN IS MODIFICATION OF CHILD SUPPORT EFFECTIVE?

August 23, 2010 § Leave a comment

A judgment modifying child support upward may be effective on the date that the petition is filed, or on a later date “within the sound discretion of the trial court.” Lawrence v. Lawrence, 574 So.2d 1376, 1384 (Miss. 1991). In Frazier v. Burnett, 767 So.2d 263, 268 (Miss. App. 2000), the court stated that the “best practice” is to make the modification retroactive to the date of filing.

A judgment modifying child support downward or terminating it may not be retroactive because each child support payment vests when and as due, and may not be forgiven. Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss. 1990).

§ 43-19-35 (4), MCA, effective July 1, 2010, and repealed automatically July 1, 2011, includes the following curious language:

(4) “Any order for support of minor children … shall not be subject to a downward retroactive modification. An upward retroactive mofidication may be ordered back to the date of the event justifying the upward modification.” [Emphasis added]

What exactly is the date of the event that would justify the upward change is not defined, nor have there been any cases construing the statute.

The question arises from time to time whether the court may order retroactivity without a request therefor in the pleading. Chancellors in my experience are split, some taking the position that it must be pled, some saying that it need not be since it is in the discretion of the trial judge. My own position is that it is a simple Fifth Amendment due process matter. You are trying to take someone else’s money, and because you are, you are required to put that person on notice and afford the opportunity to defend. In my opinion, the opposing party needs to be put on notice of whatever relief you are seeking, including retroactive modification, and that without that notice, the court can not grant your client that relief.

Clearly the safest position is to include a prayer for retroactive relief in every petition to modify child support. Get in your computers and add that language to your petition for modification of child support.

ADMINISTRATION OF AN INTESTATE ESTATE

August 18, 2010 § 9 Comments

[This outline is based on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]

Statutory order of preference for appointment of Administrator. § 91-7-63, MCA.

Surviving spouse.
Next of kin, if not otherwise disqualified.
Other third party, bank or trust company.
If no application is made within 30 days of the decedent’s death, administration may be granted to a creditor or other suitable person.
If no application is made and the decedent left property in Mississippi, county administrator or sheriff may be appointed. § 91-7-79 and -83, MCA.

Oath and Bond.

At the time that Letters of Administration are granted, the Administrator must take and subscribe the oath set out in § 91-7-41, MCA.
At the same time the Administrator must also post a bond in the full value of the personal estate unless al heirs are competent and consent to waive or reduce bond, or unless the Administrator is the sole heir. § 91-7-67, MCA.

Notice to Creditors.

Administrator has the responsibility to provide notice to creditors in the order and form prescribed in § 91-7-145, MCA:

Adminisrator must make a reasonably diligent effort to identify creditors having a claim against the estate, and to mail them actual notice of the 90-day time period within which to file a claim.
Administrator must file affidavit of known creditors and attest to having served actual notice on them.
After the affidavit of known creditors has been filed, Administrator publishes notice to creditors in a local newspaper notifying them that they have 90 days within which to file a claim against the estate. The notice must run three times, once per week for three consecutive weeks, and must include the name of the estate and the court file number.
Administrator must file proof of the newspaper publication with the court.
Publication may be waived by the court in small estates with a value not more than $500.

Inventory and Appraisal.

Unless excused by the court, the Administrator must complete and file inventory and appraisal within 90 days from the grant of Letters of Administration. § 91-7-145, MCA.

Determination of Heirs.

An action to determine heirs must be brought before the estate may be closed.
Publication process to the unknown heirs of the decedent must be made.
Determination of heirship requires 30 days’ process and should be to a day certain so tha the unknown heirs may be called.

Interim Hearings.

Held as necessary to meet needs of the estate or to resolve interlocutory conflicts among the parties.
A hearing to determine heirs may be necessary if any previously-unknown heir appears and claims heirship and the claim is disputed by the other heirs.
A hearing to adjudicate whether to pay probated claims may be necessary if there is any dispute as to the validity or timeliness of the claims.

Petition to Close Estate and Discharge Administrator.

The attorney must file a cerificate that there are no probated claims, or that the probated claims have been satisfied.
Final account is filed with petition, unless excused by the court.
All parties in interest are summoned to a hearing on the final account and petition to close. § 91-7-295, MCA.
If approved, the court enters judgment for final distribution of any property in the Administrator’s care. § 91-7-297, MCA.
Upon court’s approval, the Administrator is allowed a reasonable fee for services and reimbursement of attorney’s fees. § 91-7-299, MCA.

HABEAS CORPUS STEP BY STEP

July 14, 2010 § 16 Comments

Habeas corpus is the ancient writ that extends ” … to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto …” §11-43-1, MCA.

In Chancery Court, habeas is most often used where one person is withholding custody of a child or a ward from the person who is legally entitled to custody. This post will focus on Chancery cases involving deprivation of custody, and not on illegal detention by the state.

The procedures for habeas are purely statutory, and are specifically excepted from Rule 81, MRCP.

The first step in obtaining the writ is to file a petition with the court. The petition must be sworn, describing where and by whom the person is being detained, the facts and circumstances of the restraint, and the ground for the relief sought. §11-43-9, MCA. Venue is proper in the county where the person is being detained, not in the county where a prior judgment of custody was entered. Logan v. Rankin, 230 Miss. 749, 94 So.2d 330 (Miss. 1957).

Next, the petition is presented to the court. Some judges require that the petitioner appear personally to testify in favor of granting the writ. This judge will issue the writ without testimony of the petitioner if the petition is in proper form, is sworn, and includes each and every element required in §11-43-9, MCA.

If the Chancellor deems the petition adequate, he or she will sign an order directing the clerk to issue the writ. The Chancellor may issue the writ also. §11-43-15, MCA.

The usual form of the writ is as follows:

“THE STATE OF MISSISSIPPI, to: _____________________

WE COMMAND YOU to have the body of ___________________, by you detained, as it is said, before __________, a judge of our _____________ Court, at _____________, forthwith (or on a given day), to do and receive what may be then and there considered concerning him. Witness my hand, etc.” §11-43-17, MCA.

The writ is served, and the return made, as with process, by any person whom the court may direct or by the sheriff or any constable. §11-43-17, MCA.

The person upon whom the writ is served is required to have the person for whose benefit the writ is issued personally before the court at the appointed time. §11-43-27, MCA. The court may, however, order immediate apprehension of the person in whose behalf the writ is sought, if the court is satisfied from the sworn allegations or testimony that the person will be removed or concealed so as not to be produced with the writ. The sheriff or designated person in such a case is directed to take the person into custody and to deliver the person to the court at the appointed place and time. The statute sets out the required language for the writ in such cases. §11-43-21, MCA.

The writ may be served on a Sunday in event of an emergency. §11-43-21, MCA.

The writ is returnable forthwith, or on a particular day within a reasonable time. §11-43-23, MCA.

§11-43-31, MCA, sets out penalties for disobedience of the writ. The respondent who disobeys the writ may be ordered to pay the person for whose benefit the writ is issued a penalty of $1,000, and the disobedient party may be punished for contempt. §11-43-31, MCA.

At the time set for return of the writ, unless the detaining party agrees to release the person detained, a hearing is held to which witnesses may be subpoenaed, and testimony and evidence is taken as at other trials, and the court may continue the case from day to day as the case may require. §§ 11-43-33 and -39, MCA. Interestingly, testimony of a witness may be offered by affidavit “whenever the personal attendance of a witness can not be procured,” provided that the affidavit is taken on reasonable notice to the other party. §11-43-39, MCA. The court may award “costs and charges, for or against either party, as may seem right.” §11-43-33, MCA.

The court may make temporary orders. §11-43-35, MCA.

The court’s judgment is final, binding and appealable. §§11-43-43, -53 and -55, MCA. The habeas court does not have continuing jurisdiction to modify its award. See, Mitchell v. Powell, 179 So.2d 811 (Miss. 1965). The jurisdiction of the Chancery Court in a habeas proceeding is temporary in nature. See, Pruitt v. Payne, no. 2008-CA-00172-COA (Miss. App. 2009).

Habeas is not to be used as a mechanism to modify prior custody decrees. Fulton v. Fulton, 218 So.2d 866, Miss. 1969). In the case of Wade v. Lee, 471 So.2d 1213, 1217 (Miss. 1985), however, the Mississippi Supreme Court carved out an exception so that the petitioner or respondent may use a habeas hearing to obtain temporary custody if the custodial parent has abandoned the child or become “altogether unfit” to have custody. In such a case, the court should set an expiration date for the temporary order in order to give the parties an opportunity to file appropriate pleadings for modification in the court having jurisdiction to entertain the case.

An observation: It is unfortunately frequent that attorneys come to a habeas hearing and try to present a modification case, with its evidence of material change, adverse effect and best interest. The proper standard in a habeas hearing to achieve a temporary change in custody, however, is to produce proof that the custodial parent is “altogether unfit” or has abandoned the child, and proof that falls short of that standard will result in the child being returned to the custodial parent. If the proof only supports a modification action, that is the procedure that should be used, and not a habeas proceeding.

JURISDICTION FOR ADOPTION

June 14, 2010 § 1 Comment

Effective July 1, 2007, Mississippi’s adoption statute was amended to change the residency requirement from 90 days to six months.

§ 93-17-3, MCA, sets out the jurisdictional requirements, which now read more like the UCCJEA than like the old, familiar adoption statutes. There are now jurisdictional requirements about availability in the state of information about the child, licensure of any adoption agency involved, and pendency of any adoption or custody proceeding in another state.

PRACTICE TIP: Get into your computers and add all of the statutory language verbatim into your adoption Complaint forms. Then, when preparing your pleadings, strip out what does not apply.

Most judges I have spoken with agree that if the jurisdictional and other statutory language is not included in your Complaint, you will have to start over, which may include obtaining a second Consent or Joinder.

At least twice a month I have to point these matters out to attorneys. Don’t embarass yourself with a client by being one of them.

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